ISP proposes independent body to police copyright

iiNet's modest proposal

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Having survived legal action brought by content owners, ISP iiNet has proposed an independent body be established to help police illegal access to and distribution of copyright material on the Internet.

In its white paper, entitled Encouraging legitimate use of Online Content, the company says the independent body could act as a clearing house for evidence presented by the industry that content is being copied illegally.

It would then seek customer information from the ISP involved, decide whether action is warranted, and follow up with the consumer accused of either accessing or publishing the infringing content. iiNet's illustration of its model is here.

iiNet says its model would relieve ISPs of what it sees as the onerous burdens that "Hollywood" seeks to put on ISPs. As recipients of private investigators' reports from content owners, iiNet says ISPs are expected to then shoulder the burden of assessing the evidence, deciding whether the customer’s action warrants termination of service, and then terminating the service.

Its alternative model would allow the independent party to act on "unequivocal and cogent evidence" of infringement, and iiNet suggests the independent body would follow the model suggested by the Federal Court (in its judgment in Village Roadshow and Others v iiNet PDF/289KB) for customer contact. This would allow customers to challenge allegations brought against them before action is taken. The independent body would also be responsible for dispute resolution.

Two other important points raised by the iiNet proposal are that the independent body could be indemnified against legal action from consumers (for example, if the consumer challenges its decisions), and that regulation would be required so that when the independent body is investigating allegations, ISPs are permitted to release the relevant customer information.

iiNet also believes that termination of access should be considered a last resort rather than, as sought by the content industries, the centerpiece of penalties. Citing France's statements that access to the internet falls under the Declaration of Human Rights, the ISP states that "disconnection without judicial oversight violates the presumption of innocence".

It offers an "imperfect" analogy to traffic infringements, noting that whatever penalties someone may incur as the driver of a car, punishment never extends to "the total denial of access to transport". iiNet also notes that termination from one ISP is ineffective in an age where individuals often have multiple accounts (DSL, smartphones and mobile broadband), and excessively punitive if it meant termination of all an individual’s accounts.

The company argues that some kind of graduated "scale" of offence would be fairer and more effective than a simple "three strikes" policy.

In line with Justice Emmett's comments in the appeal judgment, but likely to infuriate content owners, iiNet proposes that most of the costs of the scheme would lie with content industries on the basis that they will derive the greatest benefit from such a scheme.

Comment: will it work?

iiNet has closely read the judgment that (bar a High Court action) settled the appeal in Village Roadshow and Others v iiNet – and not only those parts of the appeal that were favourable to it.

There are, however, several obstacles in the way.

The first is the content industries’ willingness to fund an industry policing scheme. Content owners have a demonstrated desire to push the costs of enforcement onto others: either by demanding that ISPs act against customers on the basis of evidence that the Federal Court found inadequate; or by lobbying for wider criminal definitions of copyright infringement (which would shift enforcement costs to government).

The second relates to the relationship between content owners and government. As The Registernoted yesterday, the content owners' brand-new industry body, the Australian Content Industry Group, already has a Canberra-based lobbyist working to get in the ear of politicians. Having pressed home its assessment of economic impacts well enough to get ministerial endorsement (or at least citation), would the industry be willing to dilute its message to back the iiNet scheme?

Nor can iiNet assume that the Australian outposts of the content owners make their own policy. To a great degree, they are merely the mirrors for policy – along with lobbying positions and probably the fundamental assumptions in their economic models – created in America. To back the iiNet proposal, content owners would have to show a capacity for independent decision-making they currently lack.

Without at least the consent, if not the active support, of content owners, iiNet would have to persuade the government that its proposal can work. At least one of the key ministers, Senator Stephen Conroy, seemed unsympathetic to ISPs during the iiNet trial, describing the company’s stance (that it lacked the power to take the actions requested by content owners) as "stunning".

Winning the media won't be enough: the government has faced almost unanimous media opposition to the Great Aussie Firewall, but still it presses on.

If the battle is to be won, it will have to be in Canberra. The ISPs – or at least the Internet Industry Association – have a lobbyist, but they don’t have a great record of wins in Parliament House. There’s a lot of ministerial, opposition, and cross-bench door-knocking to happen before iiNet's proposal is taken seriously where it matters. ®